Reply Brief — Steelworkers v. Rawson

OcToBer TERM, 1989

Unrrep STEEL WORKERS oF America, AFL-CIO-CLC,

v.

Petitioner,

THARON RAWSON, INDIVIDUALLY AND AS GUARDIAN AD

LITEM FOR

SetH Rawson AND CINDY RAWSON;

BERNIECE JOHNSON, INDIVIDUALLY AND AS GUARDIAN

Ap LITEM FOR

MICHAEL WAYNE JOHNSON, RUTH

ELLEN JOHNSON AND JOHN RUSSEL JOHNSON; LAURA

DUNBAR, AS GUARDIAN AD LITEM FoR RICKINA ROSSITER

AND GLEN RossiTer, JR.; AND MARY Woop, as GUARD

IAN Ap Litem Por Lesiiz D. Woon,

Respondents.

On Petition for Writ of Certiorari to the

hee sim

PETITIONER'S REPLY BRIEF

BERNARD KLEIMAN

Suite 1910

One East Wacker Drive

Chicago, Lllinois 60601

CARL FRANKEL

Five Gateway Center

Pittsburgh, Pennsylvania 15222

Georce H. ConEN

(Counsel of Record)

Rosert M. WEINBERG

JULIA PENNY CLARK

BRepHorr & KAISER

1000 Connecticut Ave., N.W.

Suite 1300

Washington, D.C. 20086

(202) 833-9340

FREDERICK V. BeTTs

Pau. D. CaREY

James D. NELSON

Betts, PATTERSON & MINES

1215 Fourth Avenue

Seattle, Washington 98164

Attorneys for Petitioner

Wueee . Gree Perms Co. nc. « 768-OCO86 . Waenmoeron. O C s000"

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In THE

Supreme Court of the United States

OcToBer TERM, 1989

No. 89-322

UNITED STEELWORKERS OF AmeRiIcA, AFL-CIO-CLC,

. Petitioner,

THARON RAWSON, INDIVIDUALLY AND AS GUARDIAN AD

Litem FoR SETH RAWSON AND CINDY RAWSON;

BERNIECE JOHNSON, INDIVIDUALLY AND AS GUARDIAN

Ap Litem FoR MICHAEL WAYNE JOHNSON, RUTH

ELLEN JOHNSON AND JOHN RUSSEL JOHNSON; LAURA

DUNBAR, AS GUARDIAN AD LITEM For RICKINA ROSSITER

AND GLEN RossITer, JR.; AND MARY Woop, as GUARD-

IAN Ap Litem For LesLiz D. Woon,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of Idaho

PETITIONER'S REPLY BRIEF

1. In reply to respondents’ opposition, it is important

outset to make clear what is, and what is not, at

in this case. Respondents’ opposition never joins

with the legal questions presented in our petition.

respondents rest their opposition on a characteri-

of the case apparently designed to avoid those ques-

respondents repeatedly assert or suggest that

“actions” by the union. Br.

also 9, 10, 12, 15, 16-17. In respondents’

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words, this case “involve[s] an overt act characterized as

either a misfeasance or malfeasance.” Id. at 16-17 (em-

phasis in original).

Based on that characterization, respondents assert a

vehicle, causing injury to person or property, federal law

preempt a state-law tort claim against the

on that

negligent conduct. Similarly, a state

But that proposition has no application to this case.

While respondents use words like “overt act” and “mal-

feasance,” nowhere in their opposition do they identify

years of this litigation, respondents have never alleged,

and have never presented any evidence, that the union

here did anything that created a risk of harm or that in-

creased any preexisting risk of harm.

In this regard, the facts as to what the union did or

did not do in this case are simple and are not in dispute.

First, the union entered into a contract with the com-

pany, which permitted the union to designate a represen-

tative “to accompany” the company’s safety engineer on

the engineer’s monthly “tour of a section of the mine”

(17la; see also Pet. at 4). The contract also permitted a

mitted any affirmative act of negligence in the course of

accompanying these inspectors.

As the opinion of the Supreme Court of Idaho—as well

respondents’ complaint and respondents’ opposition in

this Court—makes clear, the alleged negligence here con-

sists entirely of actions the union might have taken, but

did not take, that might have led to the correction or

mitigation of certain safety “deficiencies” tha already

were present in the mine and that purportedly contrib-

uted to the mine disaster. (27a-29a; Pet. at 5-6; see also

Br. in Opp. at 6-7.) In the words of the Supreme Court

of Idaho:

(28a-29a ; see also Br. in Opp. at 7.)

The two federal questions presented in our petition are

thus squarely raised. The first question is clearly framed

by what we have said to this point: Whether the federal

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duty of fair representation preempts a state-law tort ac-

tion that is based solely on the union’s alleged failure to

take certain actions in the course of exercising its author-

to enforce the safety provisions of the collective bar-

gaining agreement.

The second question is equally straightforward. Re-

spondents and the court below assert that the union “un-

dertook” a duty to inspect. (6a; Br. in Opp. at 9-10.)

But such an undertaking could only be found in the col-

lective bargaining agreement. Absent a contractually im-

posed duty to inspect, a union does not have a general

duty to discover and report safety hazards; and a state

could not impose such a duty consistent with federal labor

law. Accordingly, the second question here is also di-

rectly presented: whether federal law—in particular,

§ 301 of the Labor Management Relations Act—preempts

state law on the disputed question of whether the collec-

tive bargaining agreement imposed a duty upon the union

to discover and report safety hazards.

2. In their opposition, respondents do not directly ad-

dress the first question presented in the petition. Respond-

ents do not dispute the preemptive effect of the duty of

fair representation, or the importance of the duty’s appli-

cation to union activities related to safety, or the need

for this Court to address that question in this case. Two

points, however, merit a brief reply.

First, lest respondents’ opposition raise any confusion

on the point, it is important to make clear that the issue

of how to characterize the union’s activities in connection

with inspections has no relevance to the first question

presented in the petition. The question of duty of fair

representation preemption is squarely raised whether the

union “inspected” the mine or whether the union only

“accompanied” those who inspected the mine. Whatever

the characterization, the undisputed facts are that the

union was engaged in the activities that were authorized

by the safety article of the collective bargaining agree-

Opp. at 15. Putting aside whether those characterizations

are correct, this is a distinction without a difference.

Whatever significance the distinction between nonfeasance

and misfeasance may have for Idaho law, id., it has no

significance for the principles that underlie the federal

duty of fair representation. This Court has never drawn

a distinction between “nonfeasance” and “misfeasance”

either in defining a union’s duty of fair representation

or in drawing the bounds of federal preemption.

In any event, the opinion in Condon leaves no doubt

that that case conflicts squarely with the decision of the

Supreme Court of Idaho on the first question presented.

The First Circuit stated:

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for the negligent performance of a duty it assumed

that arose inextricably, as here, from the safety and

health provisions of a collective bargaining agree-

! Indeed, the claim in Condon presents a striking parallel to the

claim in this case. The plaintiff in Condon was burned when sparks

from a welding torch set his shirt on fire. Jd. at 591. He alleged

that the union had “negligently failed to carry out” its alleged duty

“to ensure that the equipment on the premises was in a safe operat-

ing condition and that sufficient fire safety equipment was avail-

able.” Jd. at 592-98. These allegations are, for all practical pur-

poses, identical to respondents’ allegations that the union in this

case negligently “failed to require” fire drills, personal protective

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3.

case was “an active tortfeasor,” the preemption questions

are governed by Linn v. Plant Guard Workers Local 144,

383 U.S. 53 (1966), and Farmer v. Carpenters Local 25,

430 U.S. 290 (1977). Br. in Opp. at 16-17. As we have

shown, the label “active tortfeasor” cannot accurately be

applied to the allegations of negligence in this case. But

even if the iabel were appropriate, those allegations of

negligence do not rise to the level of the intentional torts

that this Court allowed state law to redress in Linn and

Farmer.

4. Respondents suggest that this Court’s decision in

Lingle v. Norge Division of Magic Chef, Inc., 486 U.S.

399, 108 S. Ct. 1877 (1988), is somehow determinative

in this case. Br. in Opp. at 9, 12-13, 17. As we show,

however, the only bearing Lingle has on this case is that

it reconfirms the analysis of this Court’s decision in

IBEW v. Hechler, 481 U.S. 851 (1987), on which we

rely in connection with the second question presented.

equipment, and adequate emergency egress from the mine. See Pet.

at 6, Br. in Opp. at 6-7.

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by that collective bargaining agreement (33a). Respond-

ents contend that the agreement created a duty to “in-

spect” the mine; the union contends that the agreement

gave it a right, but not a duty, to perform a far more

limited function—i.e., to “accompany” those who did have

a duty to inspect the mine. Pet. at 3-4, 23-24; see also,

p. 2-3, supra. The scope of the union's duty, if any, in

connection with inspections of the mine is necessarily de-

pendent on what the agreement authorized the union to

do, and that question could not be decided without inter-

preting the disputed provisions of the agreement.

the agreement authorized. Pet. at 9, 23-24. Significantly,

respondents make no attempt to defend the assertion that

there was such a concession. Rather, they simply assert,

without any record support, that the union “did in fact

actively engage in the duty of safety inspection.” Br.

in Opp. 10. Section 301 preemption cannot be avoided

either by pretending that the union made a concession

it did not make or by pfetending that there is evidence

that the union was engaged in inspecting. The facts on

this point are not in dispute: union representatives were

present during some inspections of the mine. What is in

dispute is the function of those representatives: were

they carrying out a duty to “inspect” the mine or were

they exercising the union's right to “accompany” those

who were inspecting the mine. That dispute cannot be

resolved without interpreting the collective bargaining

agreement.